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2010 Supreme(Ker) 1008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.K. MOHANAN, J.
Shajahan T.M., S/o. Moula Rawther - Petitioner
Versus
P.J.Abraham, Puthenpurayil House and Ors - Respondent
Crl.A.Nos.1914, 1917, 1918 & 1919 of 2006
Decided On : 17-05-2010
Advocate Appeared:
For the Petitioner: Sri.S.Sreekumar
For the Respondent: Sri.Liju.V.Stephen
The complainant must establish a legally recoverable debt or liability and the issuance of the cheque by the accused to prove an offence under Section 138 of the N.I.Act.
Headnote:
Section 138 of the Negotiable Instruments Act,1881 - Appellants filed appeals under Section 378(4) of the Code of Criminal Procedure challenging orders of acquittal recorded under Section 255(1) of the Cr.P.C. - The accused were acquitted as the complainant failed to prove that the cheques were issued in discharge of a legally recoverable debt and that the accused had committed the offence punishable under Section 138 of the N.I.Act.
Fact of the Case:
The complainant filed separate complaints against the accused for dishonour of cheques issued in connection with a loan availed by the company. The accused denied issuing the cheques and claimed they were stolen by the complainant.
Finding of the Court:
The trial court found that the complainant failed to establish a legally recoverable debt or liability from the accused and that the cheques were issued by the accused. The court acquitted the accused under Section 255(1) of Cr.P.C.
Issues: The court considered whether the accused had issued the cheques in discharge of a legally recoverable debt and whether they had committed the offence under Section 138 of the N.I.Act.
Ratio Decidendi: The court held that the complainant failed to provide concrete evidence of the debt or liability owed by the accused and that the cheques were issued by them. The court also noted inconsistencies in the complainant's case and the absence of documentary evidence to support the claim.
Final Decision: The appeals were dismissed as the court found no substantial reasons to interfere with the order of acquittal.
1. All these appeals are filed, under Section 378(4) of the Code of Criminal Procedure (for short 'Cr.P.C.') by the same complainant in four different prosecution cases for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred for short as 'the N.I.Act' only) challenging the orders of acquittal recorded under Section 255(1) of the Cr.P.C., vide judgment dated 23.8.2006 of the Judicial First Class Magistrate Court-IV, Kochi in the above cases.
2. As the appellant in all these cases is one and the same person and the subject matter, especially the facts, circumstances and the question of law involved are identical and the first respondent/accused in each case are though different persons, but as they are close relatives and as the imputation of allegations and the liability alleged against them are identical and connected and the impugned judgments deserve same treatment as the same are issued by the same court, these appeals were heard together and being disposed of by this common judgment.
This appeal is preferred by the complainant against the judgment dated 23.8.2006 in S.T.No.230 of 2004 of the Judicial First Class Magistrate Court-IV, Kochi-5 (Additional Munsiff, Kochi) against the first respondent/accused, one P.J.Abraham, wherein the case is connected with Ext.P8 cheque bearing No.635278 dated 9.8.2004 for an amount of Rs.15 lakhs.
This appeal is preferred by the complainant against the judgment dated 23.8.2006 in S.T.No.235 of 2004 of the Judicial First Class Magistrate Court-IV, Kochi-5 (Additional Munsiff, Kochi) against the first respondent/accused, one Titto Abraham wherein the case is connected with Ext.P8 cheque bearing No.104589 dated 9.8.2004 for an amount of Rs.20 lakhs.
This appeal is preferred by the complainant against the judgment dated 23.8.2006 in S.T.No.380 of 2004 of the Judicial First Class Magistrate Court-IV, Kochi-5 (Additional Munsiff, Kochi) against the first respondent/accused, one Tojo Abraham wherein the case is connected with Ext.P8 cheque bearing No.106005 dated 9.8.2004 for an amount of Rs.20 lakhs.
This appeal is preferred by the complainant against the judgment dated 23.8.2006 in S.T.No.237 of 2004 of the Judicial First Class Magistrate Court-IV, Kochi-5 (Additional Munsiff, Kochi) against the first respondent/accused, one Lillikutty wherein the case is connected with Ext.P8 cheque bearing No.104531 dated 9.8.2004 for an amount of Rs.15 lakhs.
3. In all these cases, the allegations raised and the facts and circumstances involved are identical and liabilities attributed against all the respondents/ accused are similar in nature and connected with the same transaction which I shall refer now.
4. According to the complainant, M/s.Kainady Tanneries Pvt.Ltd. (hereinafter referred to as 'company' only) is a company incorporated under the Companies Act, 1956 of which one Tony Abraham is the Managing Director and Mr.P.J.Abraham, Mr.Tito Abraham and Mr.Tojo Abraham are the Directors and the major shares of the company were held by the said Lillykutty.
5. The father of said Tony Abraham, viz., P.J.Abraham is the first respondent/accused in Crl.A.No.1914 of 2006, who is one of the Directors of the company. The first respondent/accused in Crl.A.Nos.1917 and 1918 of 2006, respectively Titto Abraham and Tojo Abraham are the brothers of the said Managing Director- Tony Abraham and the sons of the above mentioned P.J.Abraham. The first respondent/accused in Crl.A.No.1919 of 2006 is the mother of the said Managing Director- Tony Abraham and also the first respondent/accused in Crl.A.Nos.1917 and 1918 of 2006 and the wife of Mr.P.J.Abraham, who is the first respondent/accused in Crl.A.No.1914 of 2006. According to the complainant, Lillikutty Abraham, though, she is not a member of Director Board of the company, she holds substantial number of shares of the said company.
6. According to the complainant, all the accused were actively involved in the day to day
